Saboor Umma V. Coos Kanny

Present: Mr. Justice Wendt.

SABOOR UMMA v. COOS KANNY.

P. C, Colombo (Addl. ), 8, 713.

Maintenance Ordinance, s. 3-Discharge of defendant owing to absence of complainant-Cause of absence-Criminal Procedure Code, s. 194.

Where the complainant in a maintenance case being absent on the day of trial (May 9) the defendant was discharged, and the complainant subsequently (December 17) instituted another complaint, and explained her absence on the previous occasion by stating that the defendant fraudulently promised to marry her and to pay her Us. 100 and thereby induced her to absent herself, -

Held that the order of discharge must be considered as an acquittal.

Held, further, that the reason given by the complainant for her absence on May 9 being satisfactory, the Magistrate had power to set aside the order of discharge of that date and to regard the present proceedings as a renewal of the former application.

APPEAL by the defendant from an order condemning him to pay Rs. 4 per mensem for the maintenance of his illegitimate child. The facts and arguments sufficiently appear in the judgment.

Bawa, for the defendant, appellant.

Tisseveresinghe, for the complainant, respondent.

Cur. adv. vult.

March 25, 1909. Wendt J. -

The defendant appeals against an order under " The Maintenance Ordinance, 1889, " directing him to pay a sum of Rs. 4 a month for the maintenance of his illegitimate child by the complainant. Besides the question of fact as to the paternity of the child, as to which I see no reason for disagreeing with the Magistrate's finding against the appellant, two questions were argued before me in appeal, viz., first, the question whether the order made upon the previous application made by the complainant was a bar to the present application; and secondly, whether there was proof that the application was within twelve months of the child's birth, or that the child had been maintained by the appellant within that period. On the first of these questions the facts are that on April 23, 1908, complainant made her application, in which she stated that the child was six months old, and that for six months the defendant had neglected to maintain it. When examined by the Court, she stated that appellant had failed to maintain it for ten months (which

would put the date of birth back to June, 1907). Upon appearing to the summons on the application the appellant denied the paternity of the child. The trial was fixed for May 9, and the parties issued subpoenas for a number of witnesses on both sides, but on the 9th both parties were absent, and the Magistrate made order " Case struck off. " It is argued by appellant that this order was equivalent to a dismissal of the complaint, and that the Magistrate ought properly to have "acquitted the accused. " No doubt, as pointed out in cases like Eina v. Eraneris 1 and Subaliya v. Kannan-gara, 2 the Police Court in proceeding under the Maintenance Ordinance is not dealing with a strictly criminal matter, but it is clear from sections 15, 16, and 17 among others of the Ordinance that its procedure should be regulated by the provisions of the Criminal Procedure Code. Section 194 of that Code enacts that " If the summons has been issued on complaint under section 148 (1) (a), and upon the day and hour appointed for the appearance of the accused, or at any time to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks proper to adjourn the hearing of the case to some other hour or day Provided that if the complainant appears in reasonable time and satisfies the Magistrate that his absence was due to sickness, accident, or some other cause over which he had no control, then the Magistrate shall cancel any order made under this section. " With the exception of the proviso, this section is a re-enactm

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